What’s Wrong With the N.S.A. Tracking Cell-Phone Locations?

Here is the latest news from the Edward Snowden documents, though undoubtedly not the last: the Washington Post reports that the National Security Agency is collecting cell-phone location records on a mass scale—something like five billion a day, worldwide—many having to do with Americans. The Post story, by Barton Gellman and Ashkan Soltani, with contributions from Julie Tate, is deeply damaging, for several reasons.

First, the N.S.A. isn’t supposed to be spying on Americans, not without a warrant or court order premised on a specific link to a foreign terrorist. The N.S.A. seems to have treated the international character of cell-phone networks, which cross borders, as an absolution of its responsibility not to spy on people in America, even if that’s where both the phones and their users are. (The Agency can overreach limits in following around foreigners, too.) If you’re spying on the whole world, the logic seems to be, you can’t really be said to have “targeted” Americans.

And keeping lists of where different people’s phones were at any given time does count as spying. We had been told that the bulk collection of call records—“telephony metadata”—was somehow legal, wasn’t even surveillance, because it didn’t include this sort of thing. The public has been lectured incessantly, by the President and any number of congressmen and other officials, about the harmlessness of metadata, and how only the uninformed worry about it. At a hearing in September, Dianne Feinstein asked James Cole, the Deputy Attorney General, to describe metadata. He replied that it was “quite limited”:

It is the number that a telephone calls—just the number. It doesn’t include the name of the person called. It doesn’t include the location of the person called. It doesn’t include any content of that communication. It doesn’t include financial information.

For that, he said, “you would have to go and get other legal processes.” Or illegal ones. The pattern is this: a program is revealed; the N.S.A. acknowledges that it does X, but says that no one should make the mistake of thinking it does Y—yes, that would be scary, but X is benign—without mentioning that it is indeed doing something very much like Y, just under another rubric.

That brings us to what’s really a reminder: that you can’t treat the opinions of a secret court about what is and isn’t legal as reassuring when you only see a few of them, heavily redacted. In Footnote 2 to her decision authorizing the N.S.A.’s bulk collection of telephone metadata in a separate program, Judge Claire Eagan, of the Foreign Intelligence Surveillance Act Court, writes, “the Court has explicitly directed that its authorization does not include ‘the production of cell site location information.’ ” So what is the authorization for this practice? The N.S.A. said Friday, as The Hill reported, that it was relying on a 1981 executive order (updated in 2004) that dealt with foreign surveillance.

(An ancillary reminder: it is time for the Supreme Court to revisit its 1979 decision in Smith v. Maryland, a case in which the police looked at phone records to see if threatening calls to a witness had been made from the home phone of a robbery suspect, whose name they already had; changes in technology have radically shifted its meaning.)

Then there’s the way the information was gathered. This was not just a matter of phone companies sending over billing records. According to the Post, “The agency’s access to carriers’ networks appears to be vast”—apparently from the companies’ networks. There are references in the documents to corporate partners (Artifice and Wolfpoint, for example—did they get to choose their codenames?) and to how the “N.S.A. asks nicely for tasking/updates.” The only brake, at the moment, seems to be that the Agency collects so much data that it can hardly store or sift through it. But that will get better, and then the violations of privacy will be even worse.

That privacy is the next issue. Cell-phone location data is shockingly intrusive. It is really, in this day and age, person-location data. According to the Post, the N.S.A. applied a group of analytic tools known as Co-Traveler, a code name that says a lot more than Wolfpoint. With Co-Traveler, the N.S.A. does not, according to the Post, have to start by having a reason to suspect you; you become suspicious because of where you have been and, disturbingly, whom you have been near. Bulk collection of location data means that the government may be able to look back years and see what doctor’s office or bookstore or lecture hall you were in, who sat next to you on a sofa or in your kitchen—who you are and who you love. That revelation comes at a time when the defenders of mass surveillance ask, as a British M.P. did of the Guardian’s Alan Rusbridger, “Do you love this country?” (Rusbridger: “I’m slightly surprised to be asked the question but, yes, we are patriots, and one of the things we are patriotic about is the nature of democracy, the nature of a free press.”)

And so we come to the move from the Fourth Amendment (no unreasonable search and seizure) to the First, which mentions “the right of the people peaceably to assemble,” as something that Congress can’t abridge. What would Joseph McCarthy have done if he could have looked up who had been in a particular college dorm room on a day, twenty years before, when students were talking about socialism? What if people got used to the idea that the government could and would do this, and so picked up the pace and turned away when they saw people gathering to listen to a speaker, or reading a sign on a wall, and never heard or saw what was being said? (The freedom to assemble is linked, in the First Amendment, to the right “to petition the government for a redress of grievances.”) You would know that the government was taking attendance at your church. (This is one reason that the First Unitarian Church of Los Angeles has brought suit against the N.S.A., with the help of the Electronic Frontier Foundation.) You would think again before showing up at a talk by a lawyer representing someone the government has called a terrorist. If you were a reporter, or a source, you would wonder how you could safely meet. You might never at all.

That would leave Americans wondering what our actual rights might be, burdened by a final, pervasive problem: the mendacity of the executive branch in defending these programs. How do you debate what you can’t see?